‘Mischief’ in Gay Rights Precedent, Dissent Warns

(CN) – “Far reaching” and “mischievous” consequences for the gay-marriage debate will arise after the 9th Circuit let stand a ruling that found it discriminatory to pass over potential jurors based on their sexual orientation, a dissent Tuesday warns. Decided in January, the original opinion by three-judge panel came in the appeal of an antitrust case between pharmaceutical companies GlaxoSmithKline and Abbott Laboratories over HIV medications. Applying an expansive reading of the Supreme Court’s landmark ruling against the Defense of Marriage Act, U.S. vs. Windsor, the appellate panel found that judges must apply “heightened scrutiny” to any peremptory strike of a gay juror. “Windsor requires that classifications based on sexual orientation that impose inequality on gays and lesbians and send a message of second-class status be justified by some legitimate purpose,” Judge Stephen Reinhardt wrote for the unanimous panel. Neither party in the case sought reconsideration of that decision, but one circuit judge called for a hearing of the question before an 11-judge, en banc panel. After a majority of the 9th Circuit’s nonrecused active judges failed to go along Tuesday, Judge Diarmuid O’Scannlain, joined by Judges Jay Bybee and Carlos Bea, attacked the ruling in a pointed dissent published Tuesday. “The opinion’s unprecedented application of heightened scrutiny to a peremptory strike of a juror who was perceived to be gay bears significant implications for the same-sex marriage debate and for other laws that may give rise to distinctions based on sexual orientation,” O’Scannlain wrote in the nine-page dissent. “Indeed, today’s opinion is the only appellate decision since United States v. Windsor, to hold that lower courts are ‘required by Windsor to apply heightened scrutiny to classifications based on sexual orientation for purposes of equal protection.’ Such holding is wrong, egregiously so. Because of the danger that district courts will be misled by the opinion’s sweeping misinterpretation of Windsor, it is most unfortunate that we denied rehearing en banc.” The ruling, which received worldwide attention when it came down, has already caused “mischief” in the gay-marriage debate,” O’Scannlain said. “In the view of many, the application of heightened scrutiny in this case precludes the survival under the federal Constitution of long-standing laws treating marriage as the conjugal union between a man and a woman,” he wrote. “As the first opinion among our sister circuits to apply heightened scrutiny to an equal protection claim in light of Windsor, it is likely a bellwether – or, perhaps, a premonitory harbinger.” Moreover, the ruling once again makes the 9th Circuit an outlier among the circuits in its interpretation of the high court – or as O’Scannlain puts it, “out on a limb” and “on the short end of a 10-2 split among our sister circuits.” “Without even acknowledging the consequences of its decision, the panel has produced an opinion with far reaching – and mischievous – consequences, for the same-sex marriage debate and for the many other laws that may give rise to distinctions based on sexual orientation, without waiting for appropriate guidance from the Supreme Court,” he wrote. “And in doing so, it plainly misread Windsor, abandoned our own equal protection precedents, and disregarded our procedures for departing from settled constitutional doctrine.”